In Colorado, Are Threatening Statements Protected by Psychologist-Patient Privilege?

By Carole C. Schriefer, R.N., J.D., The Health Law Firm

Mental health providers and patients share a sacred bond. But is that sensitive relationship tarnished when a doctor testifies against patients?

That was the question posed to the Colorado Supreme Court in People v. Kailey. The state’s high court had to decide if a patient makes threatening statements during a therapy session, and the doctor reports these statements, can the doctor’s testimony against a patient be used in court?

Click here to read the entire case.

Case Background.

Randy Kailey was serving a 32-year sentence at a correctional facility in Colorado when he met with Brian Willson for a therapy session. Willson was a psychologist candidate working for the Colorado Department of Corrections (DOC). During the session, Kailey allegedly spoke threateningly about witnesses who testified against him during his trial. Willson considered these statements to constitute serious threats of violence.

According to Willson’s duty to warn, he submitted an incident report to the Colorado DOC. Based on that report and testimony from Willson, the State of Colorado charged Kailey with retaliation against a witness.

Kailey moved to exclude the doctor’s testimony, contending that Kailey’s statements should be protected by the psychologist-patient privilege. After a hearing, a trial court sided with Kailey, ruling that even after a mental health provider notifies law enforcement about the threatening statements, those statements remain privileged.

Colorado Supreme Court’s Dilemma.

All jurisdictions acknowledge some form of the duty to warn. However, there are disagreements in various jurisdictions over whether mental health providers can testify on threatening statements made by their patients when these statements have already been disclosed.

In the case discussed above, Willson’s testimony was critical to the prosecutor’s case. The suppression of evidence due to the psychologist-patient privilege would have significantly impeded Colorado’s ability to prosecute Kailey.

Colorado Supreme Court Decision.

In the end, the Colorado Supreme Court held that if a mental health provider believes that statements made by a patient during a therapy session threaten imminent physical violence against a specific person, and thus triggering the provider’s legal duty to warn, the patient’s threatening statements are not protected by the psychologist-patient privilege. Consequently, the Colorado Supreme Court held that the trial court erred when it excluded threatening statements made by Kailey to Willson on the grounds that the statements were protected by the psychologist-patient privilege.

FYI on Psychologist-Patient Privilege.

Psychologist-patient privilege is a privilege whereby a person can prevent the disclosure of a confidential communication made in the course of diagnosis or treatment of a mental or emotional condition by or at the direction of a psychologist. The requirements of this privilege are:

1. The communications must be confidential;
2. The therapist must be a licensed psychologists; and
3. The communications must occur in the course of diagnosis or treatment.

Almost all the states in the United States have specific laws on psychologists-patient privilege. The state laws vary with regard to the types of therapy relationships protected and the exceptions recognized. The privilege can be overcome under certain conditions, such as when the examination is ordered by a court. Be sure to consult with your own state for its specific statutes on the psychologist-patient privilege. If you have any question be sure to contact an experienced health law attorney.


Do you agree or disagree with the Colorado Supreme Court’s ruling? Please explain your opinion.

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About the Author: Carole C. Schriefer is a nurse-attorney with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.

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